The Luther (Luke) Soules III Award is presented in January of each year by the Litigation Section of the State Bar of Texas at the Litigation Update Institute. The award is given to an attorney who embodies excellence in the practice of the law and exemplary service to the Bar. It is designed to recognize Texas legal practitioners who demonstrate outstanding professionalism and community impact.

The next award will be presented at the 2017 Litigation Update Institute in San Antonio on January 26-27, 2017. The recipient will attend the Litigation Update as a guest of the Litigation Section, attend the speaker’s dinner with their guest, and an honorarium in the amount of $1500.00 will be made to the legal charitable organization of the recipient’s choice. There is a short ceremony during the update and the recipient is given time to make short remarks.

Selection Criteria And Rules:

The Nominee should embody the following:

 Demonstrated commitment to equal justice under law.

 Conduct promoting the rule of law.

 Outstanding examples of professionalism.

 Community impact as a result of the practice of law.

 One or more significant contributions as a result of legal representation.

The nominee must be an attorney admitted to practice law in the State of Texas for a minimum of 10 years and be in good standing with the Bar.

The nominee cannot appear on a ballot in a contested race for elected office in the same year as nominated for the award.

The nominee cannot currently serve as a member of the Litigation Section Council of the State Bar of Texas.

Nomination Application Information:

The nominator should provide the following information:

Name, address, telephone number and email for nominator and nominee.

Provide (either in a curriculum vitae or in a one page synopsis) the following information about the nominee:

A. Schools attended (degrees, honors)

B. Professional affiliations

C. Published works and legal presentations

D. Other background information

3. One Page Explanation stating the reasons why the nominator believes the nominee should be selected to receive the Award, again in light of the Selection Criteria:

A. Demonstrated commitment to equal justice under law.

B. Conduct promoting the rule of law.

C. Outstanding examples of professionalism.

D. Community impact as a result of the practice of law.

E. One or more significant contributions to either the community where they reside, the State of Texas, or on a national level, as a result of legal representation.

Nominations must be submitted by November 1, 2016, and can be submitted by email to me as chair of the Litigation Section's Luke Soules Award committee at michaelsmith@siebman.com. Nominations will be reviewed by the committee , and the 2017 recipient announced prior to the Litigation Update in January. For more information about the award or the award process, please contact me at 903-938-8900 or at michaelsmith@siebman.com.

The agenda is out for the 2016 Eastern District of Texas Bench/Bar conference, which will be held again at the Plano Marriott Legacy in Plano, Texas. Download EDTX_Bench_Bar_2016

Events start Wednesday morning, with optional (1) golf; (2) handgun shooting; and (3) shotgun clay pigeon shooting excursions. Wednesday afternoon is joint panels with the Institute for Law and Technology of the Center for American and International Law and the PTAB Bench/Bar Conference, followed by social events in the evening.

Thursday morning the conference kicks off with a presentation by Michelle Lee, Director of the U.S. Patent & Trademark Office, followed by other presentations and panels, and culminating in a keynote address by former CIA and NSA Director General Michael Hayden at the President & Chief Judge's dinner. The evening concludes with an interactive conversation with Judge Young Gi Kim in the Presidential Suite about the Korean patent litigation system and its IP Court.

Friday includes panels with the chief judges of the Federal Circuit and the Fifth Circuit, followed by a panel I am moderating on trade secret cases, including under the new DTSA, trials in East Texas, jury selection and the Sherman Division.

At the conclusion of the first quarter of this year I posted on the filing trends I was seeing in the Eastern District's patent cases. In short, filings were down substantially, with the major portion of the decrease coming from bulk filers (the top three were down 94%). Looking at statistics after the second quarter, the trend is continuing. Although the Eastern District is seeing the same "bounce back" in filings as other districts in the nation, as discussed in this very good article by Gabe Friedman in Tuesday morning's Bloomberg Law, the filing rate is still down approximately 40% from last year. (There is another article out today in Texas LawBook - East Texas Patent Litigation Still Hot But No Longer Boiling by Jeff Bounds that makes the same point, noting that filings are down almost half in the first six months of the year).

Gabe's interview with Lex Machina data analyst Brian Howard also provides a useful metric that confirms what I have been seeing, which is that the reduction in filings is coming from what he calls "high volume" plaintiffs, i.e. those which had filed more than ten suits the previous year, and not in other more traditional patent cases (which is supported by the fact that a substantial percentage of recent trials are in "competitor cases" and not cases filed by a non-practicing entity. The chart below from the article compared high and low volume filings in recent years in Delaware and EDTX. There are three observations that I think are worth making here:

Bulk Filer Cases Down - note the downward trend in recent quarters in the district's "bulk filer" filings following last fall and this spring's 101 grants and awards of attorneys fees under 285 in prominent bulk filer cases in the district.

Traditional Patent Case Filings Up - also worth noting is the steady increase in the non-bulk filer cases over the last year and a half, which does not have the dramatic up and down swings caused (presumably) by the federal rules changes and 101 and 285 rulings of the past year.

Fewer Bulk Filer Cases Than Traditional Cases- most notable of all is that the second quarter of 2016 marks the second consecutive quarter that "high volume/bulk filer" cases made up less than half of the patent filings in the EDTX.

So what do you do when you have on average 100 fewer patent cases a month being filed? Well, changes in filing trends and judicial capacity manifest themselves in a couple of ways on the ground - changes in judicial case assignments and in local procedures.

Case Assignments

The last time the district had a new case assignment order was in late 2014 just before the two most recent district judges came on board, providing the district with a full complement of eight district judges. That lasted three months before the district lost one judge to senior status, then two months later another to retirement, and then at the beginning of this year to senior status about to mature into retirement, leaving the district with five active judges and two senior status accepting new cases - and three judicial vacancies of the eight judgeships assigned to the district.

For patent practitioners, the most notable effect of that 2014 assignment was that Judge Gilstrap and Judge Schroeder shared the Marshall, Texarkana and Tyler patent dockets, with Judge Gilstrap having 80/20/30 and Judge Schroeder having 20/80/70, respectively.

Last week Chief Judge Clark issued a new case assignment general order which reflected the most recent senior status change in Tyler, where Judge Schneider's departure from active duty means that for the first time since at least 1947 (with the exception of the brief vacancy in 1968 after Judge Sheehy passed and was replaced by Judge Justice) Tyler has no active federal district judge. Tyler's patent cases were already being covered by the judges from Marshall and Texarkana - the change is that Judge Schroeder will also plug the hole in the civil docket, and Chief Judge Clark will plug the hole in the criminal docket.

Presumably the downtick in new patent filings as well as dropping his share of the Marshall docket from 20% to 5% gives Judge Schroeder the capacity to handle some additional Tyler work. Judge Clark gets there by handing off the half of the Sherman civil docket he had to Judge Mazzant. Judge Clark still has 35% of Beaumont and 100% of Lufkin.

Procedures

Like judicial assignments, local procedures change on a regular basis based on experience and the demands of a changing docket. With the number of patent cases decreasing, and more going away sooner than scheduled for various reasons (101 dismissals, transfer, and getting Ruby Sand-ed come to mind) some of the more "emergency" procedures that local judges have adopted are going away as well.

For example, several months ago Judge Gilstrap discontinued the use of letter briefing for 101 motions, and more recently the "in person" meet and confer requirement for discovery motions was removed from pending and newly-filed cases. This week he issued new docket control orders for patent cases which also discontinued letter briefing for other types of summary judgment motions in patent cases, and replaced them with requirement for submission of paper copies (with some electronic requirements as well) in the court's preferred format.

Speaking of Ryan Davis of Law360, Ryan just put out an article this morning EDekka Cools Off EDTX Patent Hotbed As Suits Drop 47% providing expanded analysis of the filing trends I identified in my post earlier this week. His number is a quarter to quarter comparison (mine was 2015 versus 2016 annualized based of first quarter filing stats) which is why the number is slightly different. But the trend is the same, and his article provides good analysis on it from both sides of the docket.

President Obama recently formally named several Texas lawyers as nominees for various judgeships in three of Texas' four districts. One was former Texas state court judge (and longtime Litigation Section colleague) Karen Gren Scholer for a vacant judgeship in Plano, which is within the Sherman Division of the Eastern District.

A recent article by Ryan Davis of Law360 provides a good background on Karen, and the effect that her addition to the Eastern District bench would have both on the Plano docket and the patent docket. It also provides some analysis into the Plano docket in comparison to the dockets of the other Eastern District divisions.

The Eastern District has eight authorized judgeships, and three are currently vacant (Plano, Tyler and Tyler). Of more interest with respect to the patent docket, the majority of that docket is normally shared by four district judges, typically those located in Marshall, Texarkana and the two located in Tyler (the Sherman Division has far more criminal cases, and a more varied civil docket). As noted above, both of the Tyler positions are vacant, and the judge located in Texarkana (Judge Schroeder) is currently assisting with the Plano criminal docket, in addition to his dockets in Texarkana, Marshall and Tyler. As a result, a disproportionate share of the docket in the district's eastern divisions is falling to the remaining judge, Judge Gilstrap of Marshall, who handles most of Marshall, part of Texarkana, and a substantial part of Tyler patent docket.

Filling the Plano seat (and eventually the Tyler positions) would result in a reallocation of the docket among the district's judges, as the article notes.

An alert weblog reader noticed that the invitations sent out for this year's Hall lecture at ETBU's Ornelas Student Center had a discrepancy on the date - the date of March 22 is correct, and that is a Tuesday, not Thursday, as the original announcements stated. ETBU has since mailed a revised invitation - but the date in the press release and the ad has always been the correct one.

I also wanted to provide a little more background about the event itself. The lecture series program commemorates the late Congressman and U.S. District Court Judge Sam B. Hall, Jr., of the Eastern District of Texas, Marshall and Texarkana Divisions, who was a Marshall native and an alumnus of the College of Marshall, ETBU's forerunner.

This year I will be speaking at the evening event on the topic “The Rule of Law” and will also reminisce (I am told) about my work as judicial law clerk with Judge Hall.

A significant portion of the proceeds from this year’s program will be contributed to the Sam B. Hall Jr. Scholarships for graduating seniors at Marshall High School. Two scholarships of $5,000 will be given. Proceeds from the event otherwise are applied to Sam B. Hall Endowed Programs at ETBU.

The program will also include presentation of the sixth annual Sam B. Hall Civic Service Award by Harrison County District Judge Brad Morin. Previous honorees were Madeleine Segal Hall (in memoriam), Ray and Mona Lawson of Marshall, Sue Jordan (formerly administrative assistant to Congressman and Judge Hall), Frank and Bonnie Strauss of Marshall, Sam R. Moseley of Marshall, and Glenn Bickerdike of Marshall. According to the press release, I am the honoree this year, but they could always change their mind, I suppose, and after hearing my talk, they might.

Tickets for the event are $65 per person and can be reserved by calling Janet Breckenridge in the President’s Office at ETBU at 903-923-2222 or by emailing jbreckenridge@etbu.edu. Please inquire regarding table reservations- tables may be reserved at the Bronze, Silver, Gold, Platinum, and Diamond levels. Advance reservations are recommended by March 17 as seating is limited. (They're not kidding about that - the event is in the Woods and Cornish Great Rooms, but the adjective is more related to the height than the actual floor space).

The Sam B. Hall Professorship and the Lecture Series were endowed in 1993 by the family and friends of Judge Hall. A native of Marshall and an alumnus of the College of Marshall, now ETBU, and the Baylor University School of Law, Judge Hall served in and was president of several civic organizations and the Board of Directors of the Marshall Regional Medical Center before his death in 1994. The Hall Professor of History is Dr. Jerry L. Summers, Dean of the School of Humanities at ETBU.

My favorite part of this year's bench/bar thus far is the way visiting Judge Shira Scheindlin from SDNY is getting a workout. She presented on e-discovery before this morning's first panel, then participated on the panel, then got a break (theoretically) where she answered questions about e-discovery and federal rule topics from attendees (like me) who recognize her as a major thought leader on these issues. Now she is back up for the conference's flagship panel on effectively managing patent cases without weakening the system that protects legitimate innovation - along with Judge Lynn from the NDTX, Judge Bencivengo from the SDCal and former EDTX chief judge Leonard Davis.
It's great that we can get speakers like this - it's even better when the conference organizers take advantage of them by slotting them multiple times on the different topics we all want to hear from them on. So kudos to these speakers - primarily judges - that gladly agree to pull double shifts for the benefit of the attendees.

In an April 28, 2014 article in Texas Lawyer Who're Your Calling Plaintiff Friendly Jeff Saltman of Fisch Sigler LLP and I analyzed the 2013 patent verdicts in the Eastern District of Texas and found that Eastern District juries rendered verdicts in favor of accused infringers in 10 out of 14 cases, and split evenly at one for each side in the two invalidity – only trials. I thought the readers might be interested in some of the post – trial activity in those two invalidity trials.

In Oasis Research v. Carbonite, et al., 4:10cv435, following a six-day jury trial before Judge Amos Mazzant in Sherman, the jury returned a verdict invalidating the patents for failing to disclose a co-inventor named Jack Byrd. On January 8, 2015, Judge Mazzant issued an order granting Plaintiff's motion for judgment as a matter of law and held that the four asserted patents were not invalid for omitting Byrd.

Meanwhile, in Alexsam v. The Gap, 2:13cv0004, a Marshall jury found that the defendants had not shown that the asserted claims were invalid. (As I have posted on recently, subsequent juries found that the claims were not infringed by either of the defendants that went to trial, but the invalidity verdict was appealed anyway). Earlier this week the Federal Circuit invalidated that finding, holding that because the plaintiff was unable to show a conception date prior to the effective filing date of the patents in suit, the jury lacked substantial evidence to find that the alleged prior art system did not anticipate the patents in suit.

So no change – still one finding that the patents were not invalid, and one finding that they were. (Readers can insert their emoji of choice here: _____).

Just did my first Periscope video post #edtexweblog - Recent Case Transfers about recent activity sending cases to visiting judges. Didn't see any of you live during it, but it's available on my Twitter feed here, it appears -

I'll say this - it takes way less time than writing a post! Steve Dotto has an interesting post on how Periscope works, and it got me intrigued.

Glad to be in Tyler today for Judge Leonard Davis' (outstanding) portrait viewing with many other lawyers who have appeared before him through the years. His staff gave him a custom gun case with their signatures on the (very cool) as well as a book memorializing his time on the bench (even cooler).